Kennedy began by relating the history of the principle of habeas corpus--that a detained prisoner may appear before a tribunal which shall order the government to show just cause for his detention, or alternatively to release him. That history goes back to 1215 and the Magna Carta, which stated more broadly that men could only be imprisoned according to the law of the land. He then discussed the critical reference to the "great writ" in Article I (legislative power) of the Constitution, which states that this privilege can only be suspended "in time of invasion or rebellion, as the public safety may require it" (emphasis added). As he pointed out, this was virtually the only place in the whole original Constitution (as opposed to the subsequent Bill of Rights) in which the Founders referred to a specific common law right--indicating the importance which they attached to it, and specifically imposing a very high burden on the Congress (and an even higher one, presumably, upon the Executive) should either think of suspending it. In this case, of course, a spineless Congress, faced in the last two years with an executive-judicial deadlock over the rights of Guantanamo prisoners, specifically took away the detainees' habeas corpus rights last year. Like the great Justice Black in the Pentagon Papers case, Kennedy--along with Stevens, Souter, Ginsberg and Breyer--decided to remind both Congress and the President that the plain language of the Constitution means what it says.
And indeed, even the Bush Justice Department--which has shown a complete contempt for precedent on many occasions--was not willing to challenge that provision head on. Instead, they relied largely on two other arguments: that the detainees are aliens who therefore do not enjoy constitutional protections, and that Guantanamo, although it has been leased and governed by the United States since 1898, is outside the Constitution. As it turns out, both of these issues have been faced repeatedly by the Supreme Court, and uniformly decided in the opposite sense. New issues arose, indeed, after the Spanish-American War, when the United States for the first time seized territories that it had no intention of incorporating as territories under the laws of the United States and turning into states. In general, the court has held that Americans abroad enjoy the same rights as Americans at home. The court in 1950 declined to grant habeas corpus hearings to some German prisoners detained by American occupation authorities in a West German prison, but as Kennedy pointed out, it did so largely because of the practical difficulties of holding a hearing in U.S. courts, and because sovereignty within West Germany was by then effectively divided between the occupiers and the new government of the Federal Republic--a very different situation from Guantanamo, which American military authorities have ruled for over a century. As Kennedy pointed out, the government is arguing that because of Guantanamo's anomalous status, American governmental authorities can govern extra-constitutionally within it. He and his colleagues rightly rejected the idea that our government can simultaneously be a democracy at home and a dictatorship in a foreign possession. "These concerns," Kennedy wrote, " have particular bearing upon the Suspension
Clause question in the cases now before us, for thewrit of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."
That is not all. The case of the German prisoners (Eisentrager) was, as Kennedy points out, entirely different from those of the Guantanamo detainees for several reasons. First of all, there was no doubt that the prisoners had in fact made war upon the United States and had become prisoners of war in so doing--exactly the point that many Guantanamo detainees deny and want to have adjudicated. Secondly, the Germans had been tried and convicted of war crimes in normal American military courts--exactly the course of action the Bush Administration has refused to take because it could not get convictions. And they were not tried, like Milligan in Indiana during the civil war, in a jurisdiction where normal civilian courts were functioning. Essentially they were trying for what the British call a second bite of the cherry, and it is not difficult to understand why the Supreme Court refused to grant it. Yet Eisentrager, Kennedy writes, was, amazingly, the Administration's principle grounds for arguing its position!
Then follows a long section that, first, reviews and reaffirms the use of habeas corpus proceedings to allow even defendants who have been convicted in American courts the right to challenge the legality of their conviction (a right that recent laws have restricted somewhat, but not eliminated), and secondly, argues that a substitute procedure might be adequate to deny the writ. The procedures now available to Guantanamo detainees, however, do not, Kennedy emphatically states, meet that test. The accused cannot see all the evidence against him and, because hearsay is admissible, he cannot challenge all the witnesses in court. In short, the detainees are manifestly in need of exactly the kind of protection the great writ offers. And furthermore, as Kennedy stresses, under the Detainee Treatment Act (DTA) that denied them habeas corpus, detainees will never have an opportunity to present any new exculpatory evidence once they have been designated as an illegal enemy combatant subject to detention until the war on terror is declared over. Although the Court of Appeals can review the proceedings of the Combatant Status Tribunals, it can do so (under the law) only to determine whether the proceedings fell within the guidelines laid down by the Secretary of Defense--not to evaluate the worth of the evidence presented, much less to hear new evidence. That, Kennedy and the majority concluded, does not adequately protect the rights of prisoners, some of whom have been detained for six years.
Chief Justice Roberts's dissent is noteworthy because of the way that he stands the whole question on his head. Kennedy focuses on the right of the government to detain aliens under its jurisdiction and insists, properly in my view, that the Framers rightfully placed explicit restrictions on the government's ability to detain anyone by denying the right to suspend habeas corpus except in time of invasion or rebellion. Roberts instead argues in effect that the detainees do not enjoy the rights of citizens and that the law Congress passed is adequate to protect any rights they may have. The majority, he says, "fails to show what rights the detainees have that cannot be vindicated by the DTA system." By casting the issue in terms of the prisoners' rights instead of the government's, in my opinion, Roberts is standing the Framers' intent on its head. Merely his attempt to specify a class of people whose rights cannot be precisely defined is, to me, chilling. Scalia's dissent has received much attention because of his prediction that the decision will result in the deaths of more Americans, and he cites several news accounts claiming that detainees already released (not, to be sure, thanks to American federal courts) have perpetrated violent attacks abroad. (The possibility that their detention turned them into terrorists he does not of course mention.) But it is equally noteworthy that he spends pages and pages arguing that the writ of habeas corpus was never supposed to apply to places where the US was not sovereign--ignoring that no other country has exercised any authority in Guantanamo for a century, and ignoring the implications of allowing the government to rule territory in which it is not bound by the Constitution.
The election of Barack Obama seems to be getting more likely every day, and electoral-vote.com now shows him with a probable 304 electoral votes. Should he win Justice Stevens, now in his late 80s, can safely retire and preserve the existing 5-4 majority. Yet it is sad to note that all the Boomers on the court (Roberts, Alito and Thomas) are extreme conservatives. The court's greatest civil libertarians--Warren, Douglas, and Black--came from the Lost Generation, a Nomad generation like Obama's own Gen X. Perhaps he will appoint some justices under 50 when he gets a chance.
Footnote: Justice Scalia should read the story about detainees that has just appeared in the McClatchy newspapers. After researching the question all over the world, their reporters have concluded that dozens, and perhaps hundreds, of the prisoners held for years at Guantanamo were never terrorists at all. One does not have to agree with Jefferson (as Scalia obviously does not) that it is better for 100 guilty men to go free than to hang one innocent man to believe that the men at Guantanamo have deserved a much better hearing than they have ever been able to get.